In an interview with Newsmax, Dershowitz said: “They violated the free speech provision. They violated the impeachment criteria. They violated the bill of attainder. They violated due process, on and on and on.”
“How can you impeach a president for a speech that is constitutionally protected?” he questioned.
The law experts point out that Congress is not above the law, but that ironically, they have protection from culpability for what they do on the Senate floor.
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“But the only sanction is to vote them out of office and to bring them to trial in the court of public opinion,” Dershowitz spoke to host Carl Higbie. “Senators and congressmen are immune from lawsuits for what they do or say on the floor of the Senate, so there can’t be any personal lawsuits.”
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“The Constitution is very clear, the purpose of impeachment is removal,” he then added. “The Senate cannot try an ordinary citizen.”
On a single article of impeachment, the House voted 232–197 to impeach President Trump, on Wednesday in light of alleged “incitement of insurrection.” Democrats and 10 Republicans contended Trump incited the Jan. 6 breach of the U.S. Capitol.
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Trump is the third president to be impeached but the first in history to be impeached twice. No president has ever been impeached and convicted, and no president has ever been placed on trial after leaving office.
A single seven-hour impeachment hearing session constituted the fastest impeachment in U.S. history.
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Speaker of the House Nancy Pelosi appointed Eric Swalwell (D-Calif.), who recently came into the spotlight for his alleged intimate relationship with a purported Chinese spy, as impeachment manager.
Some legal experts argue holding an impeachment trial after Trump leaves office violates the Constitution.
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“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment,” J. Michael Luttig, a retired federal judge, wrote in an op-ed.
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Others trust that a trial could commence.
“Of course, you can impeach, convict, and disqualify a former officeholder,” Gregg Nunziata, a former Senate Judiciary Committee lawyer, said in a tweet. “This view is supported by English custom, Constitutional text and structure, original understanding, and continuous Senate precedent.”
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Under the U.S. Constitution, the Senate conducts an impeachment trial when the House impeaches a president. The upper congressional chamber can acquit a president or convict him. A two-thirds vote is required to convict. When the House impeached Trump on a separate matter in 2019, the Senate voted to acquit him 21 days after the trial started.
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